Mr Thomas Martin v Fernglen Ltd — 2022

Mr Thomas Martin’s claim for a redundancy payment failed. The tribunal accepted that his employment transferred to Fernglen Ltd on 14 July 2020 and that he was dismissed, but it found the reason for dismissal was not redundancy. Applying section 139 of the Employment Rights Act 1996 and the redundancy analysis drawn from Safeway Stores plc v Burrell and Murray v Foyle Meats Ltd, the tribunal held that the business did not close, the workplace did not close, and the need for cleaning and security work had not ceased or diminished after the transfer.

The tribunal relied on its earlier finding that there had been no substantial change in the amount of work to be carried out after 14 July 2020. It found that Mr Virani’s letter of 2 July 2020 informed employees that the centre would reopen with reduced opening hours and invited Mr Martin to return to work from 14 July 2020. The tribunal found that if transferred employees did not return, the respondent would need to recruit others, which was what happened. On that basis, it concluded there was no redundancy situation and dismissed the redundancy payment claim.

Mr Martin’s claim for wages succeeded in relation to 8 hours worked but unpaid. The tribunal accepted his evidence that he had attended work and worked those hours, although he was uncertain of the exact date. It rejected the respondent’s argument that no wages were due because he was in receipt of furlough pay, noting there was no evidence that he had remained continuously on furlough when he returned to work and no evidence from the respondent to support that position. The tribunal ordered Fernglen Ltd to pay him £69.76.